Hussain Imtiaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 182/2021

[2022] HKCFI 1701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 182 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 January 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for him. He appeared before the court as his previous application for an adjournment was refused for the reasons below.

3.The applicant, by a letter dated 23 March 2022 asked the hearing date to be extended for 28 days for him to engage a solicitor, to obtain legal advice and to arrange for documents to be sent from his country. His request was acceded to and the hearing was re-fixed to 11 May 2022.

4.By another letter dated 18 April 2022, which was received by the court on 28 April 2022, he requested his case be adjourned for 3 months for him to arrange supporting documents from Pakistan. The documents include newspaper cutting, police report and other relevant material to prove his case.

5.The Court, having considered the merits of his application, rejected his request for the following reasons:

(1)  he has not given any reason why he was unable to obtain the documents during the first adjournment;

(2)  he did not explain why he was unable to instruct a solicitor to act for him;

(3)  the Board found against him for the inconsistencies in his evidence, it will be difficult to understand why he required documents to prove his case; and

(4)  it is rather obvious that he is attempting to delay the hearing as he only sought to ask for the adjournment in less than 2 weeks before the hearing.

6.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

7.The applicant is a national of Pakistan. He entered Hong Kong illegally on 25 August 2015. He surrendered to the Immigration Department on 1 September 2015. He was charged for illegally remaining in Hong Kong. By way of written representation dated 29 April 2016, he lodged non-refoulement claim on the basis that, if refouled, he will be harmed or killed by members of a powerful gang, Antu gang, which was led by wanted person named Antizar (nicknamed “Antu”) in Pakistan.

8.According to the applicant, he worked as a police constable between 2006 and 2015. In 2010 he was tasked to investigate a wanted person called Antu, the head of the Antu gang with members to commit crimes such as blackmail, robbery and murder in the area. He had obtained information about Antu and was able to have him arrested and detained in prison. Antu controlled his gang members whilst he was being detained in prison. In 2014, Antu managed to escape from police custody. Antu took his people to another person called Jaji Jett’s house for the purpose of killing him. Jaji Jatt called the police for help. The applicant was tasked with the duty. He went to the scene with his colleagues. He heard chaotic shot-out. He shot dead Antu. Antu’s gang members knew that he had killed their leader. In 2014 on 2 occasions, he was chased by the gang members riding a motorbike. He managed to escape from them. He decided to leave Pakistan for Hong Kong. Details of his story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

9.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.By a Notice of Decision dated 30 April 2018 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk of being harmed or killed by the Antu gang members was assessed to be low [13] for the reasons that the low level of ill-treatment from the gang members in the past was indicative of a small future risk upon his return to Pakistan; that he was not injured though he was followed and it seemed that he was not restricted from movement after the incident he had killed Antu [14]. The availability of state protection further lower or negates the level of risks [15-20]. Also, internal relocation alternatives are available to him [21-23].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 3 June 2020, the Board conducted an oral hearing for his appeal.

12.The Board enquired the material aspects of the applicant’s evidence [20-28]. It had doubts on his stated facts that he feared the Antu gang members as he was a policeman whose duty it was to arrest the criminals. He did not see those people who had chased him on a motorbike and he was able to escape. The Board found the inconsistency in his evidence in relation to his route of leaving Pakistan. In his earlier statement, he said that he left Pakistan for Lahore from where he flew straight to China whereas before the Board, he said that he had stayed in Lahore for a period of time before he flew to China. The Board took the view that he should not have forgotten about the route he left his country. The Board doubted if his evidence was his personal experience [68]. The Board therefore rejected his evidence.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 19 February 2021 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant enclosed the Board’s Decision without setting out any specific ground.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had married here and applied for dependent’s visa, pending the result from the Director. He considered that it is still dangerous for him to return to his country.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.The applicant has not given any valid reason to challenge the Board’s Decision.

19.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 23^rd day of June 2022

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1